The New Visa Bulletin
Lawful Permanent Residence status, also known as “green card” status, is issued under an annual quota system. The quota is administered by the U.S. Department of State through its Visa Bulletin, which is available at: www.travel.state.gov . An applicant’s place in the green card quota line is called the “priority date,” and is established when a PERM labor certification application, or for some, an I-140, I-130, I-360, or other immigrant visa petition is filed with the government. Until recently, the priority date needed to be “current” both at the I-485 adjustment of status application time of filing and at the time of final adjudication. It was not uncommon for dates to “retrogress,” during which time persons were safe on base and lawfully allowed to remain in the U.S. and to obtain work and travel permission while awaiting the final adjudication of the case.
The Visa Bulletin has recently been amended to list separate dates, with one list of “Dates for Filing” to allow the submission of adjustment of status applications and a separate list of “Final Action Dates” which must be current before an application can be approved. For employment-based applicants, it is hoped that at some future time any person with a pending or approved I-140 petition will be allowed to file an adjustment of status application without delay. Given the large number of potential applications, it is likely the case that the government wanted to begin this process slowly by allowing only a limited number of applications to be submitted, which is why we now have two separate “cut-off date” charts.
This change is important because the green card process for some persons can take 10 years or longer to complete. Allowing employment based applicants to start the I-485 adjustment of status application process sooner gives them greater protection by allowing them to “port” their process to similar employment with another employer provided the I-140 petition has been approved and the I-485 application has been pending for at least 180 days pursuant to the AC-21 law.
The PERM green card process administered by the U.S. Department of Labor is now more than 10 years old. As a part of its efforts to modernize and to update the manner in which the program is administered, it is anticipated that additional resources will be required. In recent liaison meetings, the DOL has announced that it plans to request new legislation from Congress to allow it to charge a program filing fee. These kinds of changes can take many months, or even years, to implement, and so this change is not likely to happen prior to 2016 or possibly much later. The amount of the proposed filing fee has also not been discussed.
Additional changes may also be made to the PERM program as a part of the modernization efforts. This may include changes to the required recruitment steps including the requirement to place two Sunday newspaper ads, which can be a problem as a growing number of small and even some medium sized cities no longer have a Sunday newspaper.
At the time the PERM program was introduced, case adjudications were expected to take only a few weeks to complete. At this time, case adjudications are averaging 6 months for non-audit track cases, and more than 18 months for cases subjected to an audit. The modernization efforts are targeted to improving the case processing times to bring them closer to the original goal of having a process that can be completed within several weeks of the date the application is submitted.
As of today, Congress has not yet passed a budget for FY2016, which starts this Thursday, October 1, 2015. The recent resignation announcement of Speaker John Boehner, as well as the introduction of a stop-gap measure in the form of a continuing resolution to fund the government through December 12, 2015, make the chance of a government shutdown less likely to happen. Nonetheless, should the unanticipated happen, USCIS should not be impacted because its operations are funded entirely through user paid filing fees. The State Department, which relies on Congressional funding, would stop issuing visa stamps at consulates abroad until a budget in passed. Through that time, the Department of Labor would not issue LCA (Labor Condition Application) documents, a necessary H-1B petition filing prerequisite, and the DOL would also stop processing on all PERM green card matters during the interim, but then continue with normal operations once a new budget is in place.
Students who complete a degree program at a U.S. university are normally eligible for 12 months of optional practical training (“OPT”) work authorization to apply what they have learned to working in the U.S. A fair number of those students go on to obtain a longer term work authorized status by obtaining an H-1B visa. Every year it becomes increasingly more difficult to obtain an H-1B visa due to the annual quota restrictions. Many students only get one chance to obtain an H-1B visa before their practical training period expires.
Beyond the normal 12 month OPT period, USCIS published an expanded regulation in 2008 allowing students with a STEM degree (Science, Technology, Engineering, or Math) to obtain an additional 17 month work period if the student’s employer is enrolled in the E-Verify program. This longer 29 month period of work authorization (12 + 17) gives students at least 2 H-1B cap seasons in which to attempt to obtain an H-1B visa, while also removing some of the time pressure for sponsoring employers.
On August 12, 2015, a District of Columbia Federal District Court Judge issued an order vacating the STEM-OPT 17 month extension rule because USCIS failed to follow the required notice and comment procedures prior to implementing the new regulation. The judge stayed her order through February 12, 2016 in order to allow USCIS time to cure the procedural defect in order to reissue the regulation in a proper manner. USCIS has been off to a slow start in taking action to comply with the required notice and comment procedures. Given the odd political calculus that sometimes impacts government operations in the 12 months prior to a Presidential election, it is possible, even if rather unlikely, that a STEM OPT disaster could ensue. Nonetheless, the reasonable expectation at this time is that USCIS will comply with the judge’s order and the ability of employers to continue to sponsor F-1 students for the additional 17-month extension should not be affected.